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Archive for the tag “robert”

10th Circuit Reverses Dismissal Of Inmate’s 1st Amendment Claims

This is from religionclause.blogspot.com which you can find here:

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court’s sua sponte dismissal of a federal pre-trial detainee’s pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains’ refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

You can learn more about this issue here.

Why So Many Mass Shootings? Ask The Right Questions And You Might Find Out

This past weekend, Americans learned of another mass shooting, this time by an employee who decided to murder as many of the people he had worked with for years as possible. As of this writing, the murder toll is 12 people.

Every American asks why. What was the killer’s motive? When we read there is “no known motive,” we are frustrated. Human beings want to make sense of life, especially of evil.

Liberals (in this regard, liberals’ views are essentially as the same as leftists’) are virtually united in ascribing these shootings to guns. Just this past weekend, in a speech in Brazil, former President Barack Obama told an audience:

“Our gun laws in the United States don’t make much sense. Anybody can buy any weapon any time — without much, if any, regulation. They can buy (guns) over the internet. They can buy machine guns.”

That the former president fabricated a series of falsehoods about the United States — and maligned, on foreign soil, the country that twice elected him president — speaks to his character and to the character of the American news media that have been completely silent about these falsehoods. But the main point here is that, like other liberals and leftists, when Obama addresses the subject of mass shootings — in Brazil, he had been talking about the children murdered at Sandy Hook Elementary School in 2012 — he talks about guns.

Yet, America had plenty of guns when its mass murder rate was much lower. Grant Duwe, a Ph.D. in criminology and director of research and evaluation at the Minnesota Department of Corrections, gathered data going back 100 years in his 2007 book, “Mass Murder in the United States: A History.”

Duwe’s data reveal:

In the 20th century, every decade before the 1970s had fewer than 10 mass public shootings. In the 1950s, for example, there was one mass shooting. And then a steep rise began. In the 1960s, there were six mass shootings. In the 1970s, the number rose to 13. In the 1980s, the number increased 2 1/2 times, to 32. And it rose again in the 1990s, to 42. As for this century, The New York Times reported in 2014 that, according to the FBI, “Mass shootings have risen drastically in the past half-dozen years.”

Given the same ubiquity of guns, wouldn’t the most productive question be what, if anything, has changed since the 1960s and ’70s? Of course it would. And a great deal has changed. America is much more ethnically diverse, much less religious. Boys have far fewer male role models in their lives. Fewer men marry, and normal boy behavior is largely held in contempt by their feminist teachers, principals and therapists. Do any or all of those factors matter more than the availability of guns?

Regarding ethnic diversity, the countries that not only have the fewest mass murders but the lowest homicide rates as well are the least ethnically diverse — such as Japan and nearly all European countries. So, too, the American states that have homicide rates as low as Western European countries are the least ethnically and racially diverse (the four lowest are New Hampshire, North Dakota, Maine and Idaho). Now, America, being the most ethnically and racially diverse country in the world, could still have low homicide rates if a) Americans were Americanized, but the left has hyphenated — Balkanized, if you will — Americans, and b) most black males grew up with fathers.

Regarding religiosity, the left welcomes — indeed, seeks — the end of Christianity in America (though not of Islam, whose robustness it fosters). Why don’t we ask a simple question: What percentage of American murderers attend church each week?

Regarding boys’ need for fathers, in 2008, then-Sen. Obama told an audience: “Children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools; and 20 times more likely to end up in prison.”

Yet, the Times has published columns and “studies” showing how relatively unimportant fathers are, and more and more educated women believe this dangerous nonsense.

Then there is marriage: Nearly all men who murder are single. And their number is increasing.

When you don’t ask intelligent questions, you cannot come up with intelligent answers. So, then, with regard to murder in America, until Americans stop allowing the left to ask the questions, we will have no intelligent answers.

By Dennis Prager and published on June 8, 2019 in The Daily Wire and can be seen here.

The Persistence of Prog Rock

Critics think that the genre was an embarrassing dead end. So why do fans and musicians still love it?

Virtuosos such as the keyboardist Keith Emerson made fans feel like connoisseurs.  In April, 1971, Rolling Stone reviewed the début album by a band with a name better suited to a law firm: Emerson, Lake & Palmer. The reviewer liked what he heard, although he couldn’t quite define it. “I suppose that your local newspaper might call it ‘jazz-influenced classical-rock,’ ” he wrote. In fact, a term was being adopted for this hybrid of highbrow and lowbrow. People called it progressive rock, or prog rock: a genre intent on proving that rock and roll didn’t have to be simple and silly—it could be complicated and silly instead. In the early nineteen-seventies, E.L.P., alongside several more or less like-minded British groups—King Crimson, Yes, and Genesis, as well as Jethro Tull and Pink Floyd—went, in the space of a few years, from curiosities to rock stars. This was especially true in America, where arenas filled up with crowds shouting for more, which was precisely what these bands were designed to deliver. The prog-rock pioneers embraced extravagance: odd instruments and fantastical lyrics, complex compositions and abstruse concept albums, flashy solos and flashier live shows. Concertgoers could savor a new electronic keyboard called a Mellotron, a singer dressed as a batlike alien commander, an allusion to a John Keats poem, and a philosophical allegory about humankind’s demise—all in a single song (“Watcher of the Skies,” by Genesis). In place of a guitarist, E.L.P. had Keith Emerson, a keyboard virtuoso who liked to wrestle with his customized Hammond organ onstage, and didn’t always win: during one particularly energetic performance, he was pinned beneath the massive instrument, and had to be rescued by roadies. Perhaps this, too, was an allegory.

Most of these musicians took seriously the “progressive” in “progressive rock,” and believed that they were helping to hurry along an ineluctable process: the development of rock music into what Jon Anderson, of Yes, once called “a higher art form.” Even more than most musicians, the prog rockers aimed for immortality. “We want our albums to last,” Robert Fripp, the austere guitar scientist behind King Crimson, said. In a literal sense, he got his wish: although the progressive-rock boom was effectively over by the end of the seventies, it left behind a vast quantity of surplus LPs, which filled the bins in used-record stores for decades. (Many people who have never heard this music would nonetheless recognize some of the album covers.) Progressive rock was repudiated by what came next: disco, punk, and the disco-punk genre known as New Wave. Unlike prog rock, this music was, respectively, danceable, concise, and catchy. In the story of popular music, as conventionally told, progressive rock was at best a dead end, and at worst an embarrassment, and a warning to future musical generations: don’t get carried away.

In place of a guitarist, Emerson, Lake & Palmer had Keith Emerson, a keyboard virtuoso who liked to wrestle with his Hammond organ onstage, and didn’t always win: during one performance, he was pinned beneath the massive instrument, and had to be rescued by roadies.

The genre’s bad reputation has been remarkably durable, even though its musical legacy keeps growing. Twenty years ago, Radiohead released “OK Computer,” a landmark album that was profoundly prog: grand and dystopian, with a lead single that was more than six minutes long. But when a reporter asked one of the members whether Radiohead had been influenced by Genesis and Pink Floyd, the answer was swift and categorical: “No. We all hateprogressive rock music.”

It is common to read about some band that worked in obscurity, only to be discovered decades later. In the case of progressive rock, the sequence has unfolded in reverse: these bands were once celebrated, and then people began to reconsider. The collapse of prog helped reaffirm the dominant narrative of rock and roll: that pretension was the enemy; that virtuosity could be an impediment to honest self-expression; that “self-taught” was generally preferable to “classically trained.”

In the past twenty years, though, a number of critics and historians have argued that prog rock was more interesting and more thoughtful than the caricature would suggest. The latest is David Weigel, a savvy political reporter for the Washington Post who also happens to be an unabashed fan—or, more accurately, a semi-abashed fan. His new history of prog rock is called “The Show That Never Ends,” and it begins with its author embarking on a cruise for fans, starring some of the great prog-rock bands of yore, or what remains of them. “We are the most uncool people in Miami,” Weigel writes, “and we can hardly control our bliss.”

Almost no one hated progressive rock as much, or as memorably, as Lester Bangs, the dyspeptic critic who saw himself as a rock-and-roll warrior, doing battle against the forces of fussiness and phoniness. In 1974, he took in an E.L.P. performance and came away appalled by the arsenal of instruments (including “two Arthurian-table-sized gongs” and “the world’s first synthesized drum kits”), by Emerson’s preening performance, and by the band’s apparent determination to smarten up rock and roll by borrowing from more respectable sources. E.L.P. had reached the Top Ten, in both Britain and America, with a live album based on its bombastic rendition of Mussorgsky’s “Pictures at an Exhibition.” Bangs wanted to believe that the band members thought of themselves as vandals, gleefully desecrating the classics. Instead, Carl Palmer, the drummer, told him, “We hope, if anything, we’re encouraging the kids to listen to music that has more quality”—and “quality” was precisely the quality that Bangs loathed. He reported that the members of E.L.P. were soulless sellouts, participating in “the insidious befoulment of all that was gutter pure inrock.” Robert Christgau, the self-proclaimed “dean of American rock critics,” was, if anything, more dismissive: “These guys are as stupid as their most pretentious fans.”

The story of this reviled genre starts, though, with the most acclaimed popular music ever made. “If you don’t like progressive rock, blame it on the Beatles,” a philosophy professor named Bill Martin wrote, in his 1998 book, “Listening to the Future,” a wonderfully argumentative defense of the genre. Martin is, in his own estimation, “somewhat Marxist,” and he saw progressive rock as an “emancipatory and utopian” movement—not a betrayal of the sixties counterculture but an extension of it. Martin identified a musical “turning point” in 1966 and 1967, when the Beach Boys released “Pet Sounds” and the Beatles released “Sgt. Pepper’s Lonely Hearts Club Band,” which together inspired a generation of bands to create albums that were more unified in theme but more diverse in sound. Using orchestration and studio trickery, these albums summoned the immersive pleasure of watching a movie, rather than the kicky thrill of listening to the radio.

When bands set out to make hit albums, rather than hit singles, some of them abandoned short, sharp love songs and began to experiment with intricate compositions and mythopoetic lyrics. By the dawn of the seventies, the term “progressive rock” was being applied to a cohort of rock-and-roll groups that thought they might be outgrowing rock and roll. In 1973, Columbia Records released a double-album compilation called “The Progressives.” The liner notes informed listeners that “the boundaries between styles and categories continue to blur and disappear.”

But this inclusive musical movement was also, as Weigel emphasizes, a parochial one. “American and British youth music had grown together from the moment the Beatles landed at J.F.K.,” he writes. “In 1969, the two sounds finally started to grow apart.” Weigel quotes an interview with Lee Jackson, the lead singer of a British rock band called the Nice—Keith Emerson’s previous band. “The basic policy of the group is that we’re a European group,” Jackson said. “We’re not American Negroes, so we can’t really improvise and feel the way they can.” (Ironically, the Nice’s biggest hit was an instrumental version of Leonard Bernstein’s “America.”) In a thoughtful 2009 autobiography, Bill Bruford, a drummer who was central to the development of prog rock, noted that many of the music’s pioneers were “nice middle-class English boys,” singing songs that were “self-consciously British.” Genesis, for instance, was formed at Charterhouse, a venerable boarding school in Surrey; the band’s album “Selling England by the Pound” was an arch and whimsical meditation on national identity. Bruford pointed out that even Pink Floyd, known for free-form jam sessions and, later, cosmic rock epics, found time to record songs like “Grantchester Meadows,” a gentle ode to the East Anglian countryside.

In 1969, King Crimson, the most rigorous and avant-garde of the major prog bands, released what is now considered the genre’s first great album, a strange and menacing début called “In the Court of the Crimson King.” The album used precise dissonance and off-kilter rhythms to evoke in listeners a thrilling sensation of ignorance: you got the feeling that the musicians understood something you didn’t. At a career-making concert in Hyde Park, opening for the Rolling Stones, King Crimson played a ferocious set that ended with an acknowledgment of England’s musical heritage: a rendition of “Mars, the Bringer of War,” by the English composer Gustav Holst.

The prog-rock pioneers embraced extravagance. Concertgoers could savor a new electronic keyboard called a Mellotron, a singer dressed as a batlike alien commander, an allusion to a John Keats poem, and a philosophical allegory about humankind’s demise—all in the space of a single song (“Watcher of the Skies,” by Genesis).

From the start, King Crimson was the kind of band that musicians love—as opposed, that is, to the kind of band that non-musicians love. (King Crimson never had a hit single, although “21st Century Schizoid Man,” the first song from its first album, served, in 2010, as the basis for “Power,” by Kanye West.) Bill Bruford, the drummer, was astonished by an early King Crimson performance, and resolved to make equally ambitious music with his own band, a sweetly melodic group called Yes. In its own way, Yes, too, was profoundly English—Jon Anderson, the lead singer, generally eschewed faux-American bluesiness, and the band instead deployed pleasing multipart harmonies that recall the choral tradition of the Anglican Church.

In 1971, Yes released an album called “Fragile,” which included a hummable—and very progressive—song called “Roundabout.” On the album, it lasted more than eight minutes, but unsentimental record executives trimmed it to three and a half, and the edited version found a home on U.S. radio stations. This music, so self-consciously English, sounded different in America, where its rather nerdy creators were greeted as exotic rock stars. That summer, Yes played its first U.S. concert, at an arena in Seattle. A fan who approached Jon Anderson before the show remembered that Anderson was nervous. “I don’t know what is going to happen,” the singer told him. “I’ve never been in a place like this.”

When Anderson sang, “I’ll be the roundabout,” most American listeners surely had no idea that he was referring to the kind of intersection known less euphoniously, in the U.S., as a traffic circle. (The song was inspired by the view from a van window.) Why, then, did this music seduce so many Americans? In 1997, a musician and scholar named Edward Macan published “Rocking the Classics,” in which he offered a provocative explanation. Noting that this artsy music seemed to attract “a greater proportion of blue-collar listeners” in the U.S. than it had in Britain, he proposed that the genre’s Britishness “provided a kind of surrogate ethnic identity to its young white audience”: white music for white people, at a time of growing white anxiety. Bill Martin, the quasi-Marxist, found Macan’s argument “troubling.” In his view, the kids in the bleachers were revolutionaries, drawn to the music because its sensibility, based on “radical spiritual traditions,” offered an alternative to “Western politics, economics, religion, and culture.”

The genre’s primary appeal, though, was not spiritual but technical. The musicians presented themselves as virtuosos, which made it easy for fans to feel like connoisseurs; this was avant-garde music that anyone could appreciate. (Pink Floyd might be the most popular prog-rock band of all time, but Martin argued that, because the members lacked sufficient “technical proficiency,” Pink Floyd was not really prog at all.) In some ways, E.L.P. was the quintessential prog band, dominated by Emerson’s ostentatious technique—he played as fast as he could, and sometimes, it seemed, faster—and given to grand, goofy gestures, like “Tarkus,” a twenty-minute suite that recounted the saga of a giant, weaponized armadillo. The members of E.L.P. betrayed no particular interest in songwriting; the group’s big hit, “Lucky Man,” was a fluke, based on something that Greg Lake wrote when he was twelve. It concluded with a wild electronic solo, played on a state-of-the-art Moog synthesizer, that Emerson considered embarrassingly primitive. An engineer had recorded Emerson warming up, and the rest of the band had to convince him not to replace his squiggles with something more precise—more impressive. In the effortful world of prog, there was not much room for charming naïveté or happy accidents; improvised solos were generally less important than composed instrumental passages.

The audience for this stuff was largely male—Bruford writes ruefully that, throughout his career, women “generally and rather stubbornly stayed away” from his performances. The singer-songwriter John Wesley Harding, an obsessive prog-rock fan, suggests that these musicians were “afraid of women,” and that they expressed this fear by shunning love songs. What they provided, instead, was spectacle. As the American crowds got bigger, the stages did, too, which meant more elaborate shows, which in turn drew more fans. Weigel notes that, in one tour program, the members of Genesis promised to “continually feed profits back into the stage show.” (At one point, the show included a stage-wide array of screens displaying a sequence of hundreds of images, and, for the lead singer, a rubbery, tumorous costume with inflatable testicles.) Yes toured with sets designed by Roger Dean, the artist who painted its extraterrestrial album covers. Dean’s innovations included enormous, sac-like pods from which the musicians could dramatically emerge. Inevitably, one of the pods eventually malfunctioned, trapping a musician inside and prefiguring a famous scene from “This Is Spinal Tap.” The competition among bands to create bigger and brighter spectacles was absurd but also irresistible, and quite possibly rational. American arena stages, like LPs, needed to be filled, and so these bands set out to fill them.

Weigel’s book has an unlikely flaw, given its subject: it is too short. Wary, perhaps, of taxing readers’ patience, he finishes his tour in three hundred pages, resisting what must have been an overwhelming urge to interrupt the narrative with disco-graphical digressions. Martin, less diffident, included in his book a list of sixty-two “essential” progressive-rock albums—partly to provide a shopping list for newcomers, and partly, one suspects, because he liked the idea of outraging hard-core fans with his omissions.

So what is the greatest progressive-rock album of all time? One perennial and deserving candidate is “Close to the Edge,” by Yes, from 1972, which consists of three long songs that are, by turns, gently pastoral and gloriously futuristic, responding to the genre’s contradictory impulses: to explore musical history and to leave it behind. Earlier this year, Will Romano published “Close to the Edge: How Yes’s Masterpiece Defined Prog Rock,” a frankly obsessive study that makes no pretense of levelheadedness. Romano notes that he listened to the album “easily over a thousand times” while working on the book, and, when he wonders about a “low pulse that pervades entire sections” of the title track, it seems possible that he has begun to hallucinate. He embarks upon a brave attempt to decode Anderson’s inane lyrics, provides an astute technical description of the way Steve Howe seems to play lead and rhythm guitar at the same time, and identifies the pivotal moment when Rick Wakeman, the keyboard player, met Denise Gandrup, a designer of sparkly capes, which became his signature.

In the United States, British prog rock’s rather nerdy creators were greeted as exotic rock stars. Before Yes played its first U.S. show, at a stadium in Seattle, the singer Jon Anderson said, “I don’t know what is going to happen. I’ve never been in a place like this.”

Romano ends with a note of defiance, pointing out that Yes still hadn’t been accepted by the cultural élitists in charge of the Rock & Roll Hall of Fame. This spring, not long after the book’s publication, Yes was finally inducted—more than two decades after it became eligible. And yet Romano is right: there is something inspiring about the indigestibility of prog, which still hasn’t quite been absorbed into the canon of critically beloved rock and roll, and which therefore retains some of its outsider appeal. Often, we celebrate bygone bands for being influential, hearing in them the seeds of the new; the best prog provides, instead, the shock of the old.

Listeners who wonder what they have been missing should probably ignore E.L.P. entirely and head straight for “Close to the Edge”—or, if they want something a bit more bruising, “Red,” an austere album that a new version of King Crimson (including Bruford) released in 1974. One of the most underappreciated progressive-rock groups was Gentle Giant, but there was a reason for this neglect: none of the band members happened to be a great singer. So they used interlocking instrumental lines, shifting time signatures, and close harmonies to construct songs that seemed to occupy some phantom limb of music’s evolutionary tree.

Gentle Giant was one of the bands featured on “The Progressives,” the Columbia Records compilation, which turned out to have a hidden agenda: it was, in large part, a jazz album, seemingly designed to help prog fans develop a taste for Ornette Coleman, Charles Mingus, and Mahavishnu Orchestra. Jazz played an important but disputed role in the story of progressive rock. While some British bands were trying to turn inward, away from American influences, others were finding ways to forge new ties between rock and jazz. Indeed, Mahavishnu Orchestra, a jazz-fusion group led by the English guitarist John McLaughlin (who previously played with Miles Davis), is sometimes considered an honorary prog band—at the time, the distinctions between these genres could be hazy. And in Canterbury, in the southeast of England, a cluster of interconnected bands created their own jazz-inflected hybrids: Soft Machine, Matching Mole, Hatfield & the North. These are the bands most likely to charm—and perhaps convert—listeners who think that they hate progressive rock. Unlike the swashbucklers who conquered arenas, the Canterburians were cheerfully unheroic, pairing adventurous playing with shrugging, self-deprecating lyrics about nothing much. (One Hatfield & the North song goes, “Thank all the mothers who made cups of tea. / If they didn’t care for us, we wouldn’t be / here to sing our songs and entertain. / Plug us in and turn on the mains!”) This is music animated by a spirit of playful exploration—recognizably progressive, you might say, though not terribly prog.

The question of progress bedevilled many of the prog bands: the ethos, which implied constant transformation, was at odds with the sound, which was identifiable, and therefore stuck. Robert Fripp solved this problem by disbanding King Crimson just as “Red” was being released. “The band ceased to exist in 1974, which was when all English bands in that genre should have ceased to exist,” he said later. Once some album-side-long songs had been recorded, and some snippets of classical music appropriated, it was not obvious how further progress might be made, especially since the bands now had big crowds to please. In 1978, E.L.P. released an infamous album called “Love Beach,” which was recorded in the Bahamas, and whose cover depicted something less enticing than a battle-ready armadillo: the three grinning band members, displaying white teeth and varying amounts of chest hair.

Most of the musicians took seriously the “progressive” in “progressive rock,” and believed that they were helping to hurry along an ineluctable process: the development of rock music into what Jon Anderson, of Yes, once called “a higher art form.”

Progressive rock was a stubborn genre, and yet a number of its adepts proved to be surprisingly flexible; it turned out that their considerable musical skill could be put to new uses. In 1980, Steve Howe, the guitarist from Yes, told the Los Angeles Times that his band had been “modernized” and simplified. “Whatever’s been leveled at us in the past, we want to be re-judged,” he said. This kind of desperate ploy isn’t supposed to work, but it did: in 1983, Yes topped the American pop chart with “Owner of a Lonely Heart,” which barely sounded like it had come from the same band. A new group called Asia, made up of refugees from Yes, King Crimson, and E.L.P., released an album that reached No. 1 on the American chart. Genesis did something even more impressive, transforming into a Top Forty band while spawning three successful solo careers. The singer, Peter Gabriel, became a pop star, and so did the drummer, Phil Collins, and the bassist, Mike Rutherford, who led Mike + the Mechanics. For a few of the genre’s biggest stars, the music industry offered an attractive bargain: leave prog behind and you can be bigger than ever.

Some true believers remained, of course. In the seventies, prog-inspired American bands like Kansas and Styx had conquered arenas, and by the end of the decade there was Rush, a Yes-obsessed trio of Canadians who received even worse reviews than their British forebears. One reason was their avowed love of Ayn Rand; an influential and absurd review in New Musical Express, a British magazine, accused them of preaching “proto-fascism.” Another reason was that, by the late seventies, progressive rock was about the most unhip music in existence. “The fans showing up to hear Rush were the wrong kind of fans—the mockable ones, with mockable taste in music,” Weigel writes, holding up this judgment for ridicule without quite dissenting from it. (No doubt he was sorely tempted to use the term “deplorables.”) By the time Rush emerged, progressive rock had entered its never-ending defensive phase; uncoolness is now part of the genre’s identity, and even a devoted fan like Weigel may not be entirely sure whether he wants that to change.

Progressive rock, broadly defined, can never disappear, because there will always be musicians who want to experiment with long songs, big concepts, complex structures, and fantastical lyrics. You can hear a trace of the genre in the fearless compositions of Joanna Newsom or, equally, in “Pyramids,” an epic Frank Ocean slow jam that blends Afrocentric mythology with a narrative about sexwork. At Coachella this year, one of the breakout stars was Hans Zimmer, the German composer, who performed excerpts from his film scores with an orchestra and a rock band. (Anyone who cheered him on has forever lost the right to make snarky jokes about bands like Yes.) Plenty of revivalist bands play what might, paradoxically, be called retro-prog. And there have been latter-day innovators. Tool emerged, a quarter century ago, as an awesome new kind of prog band: precise but unremittingly heavy, all rumbles and hums. In Sweden, Meshuggah, in the nineties, built roaring, ferocious songs atop fiendish riffs in prime-number time signatures; Opeth, in the aughts, found a connection between death-metal fury and Pink Floydian reverie.

What can disappear—what long ago disappeared, in fact, at least among rock bands—is the ideology of progress in pop music: the optimistic sense, shared by all those early-seventies pioneers, that the form was evolving and improving, and that prog rock offered a sneak peek at our future. The bands thought that the arc of the musical universe bent toward keyboard solos. This is part of what drove Lester Bangs crazy—he couldn’t understand why these musicians thought they had improved upon old-fashioned rock and roll. But contemporary listeners might find the genre’s optimistic spirit more exotic, and therefore more endearing, than it once seemed. Of course, prog rock was not the future—at least, not more than anything else was. Nowadays, it seems clear that rock history is not linear but cyclical. There is no grand evolution, just an endless process of rediscovery and reappraisal, as various styles and poses go in and out of fashion. We no longer, many of us, believe in the idea of musical progress. All the more reason, perhaps, to savor the music of those who did.

By Kelefa Sanneh and published on June 12, 2017 in The New Yorker and can be found here.

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

This is from religionclause.blogspot.com which you can find here:

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state’s  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.

You can learn more about this issue here.

Justice Department Sides With Wedding Photographer In District Court Case

This is from religionclause.blogspot.com which you can find here:

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville’s public accommodation ordinance against her. Plaintiff “only accepts requests for services which are consistent with her editorial, artistic, and religious judgment.”  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny….

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive…. By … compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

… That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny….  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

You can learn more about this issue here.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

This is from religionclause.blogspot.com which you can find here:

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate’s First Amendment challenge to his arrest for parole violations. Mark Janny’s parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter’s program when he refused to attend chapel religious services. The court held that plaintiff’s Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant’s qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

You can learn more about this issue here.

6th Circuit: Non-Recognition Substantially Burdened Christian Identity Inmates

This is from religionclause.blogspot.com which you can find here:

In Fox v. Washington, (6th Cir., Feb, 6, 2020), the U.S. 6th Circuit Court of Appeals held that the trial court had misapplied RLUIPA in upholding Michigan’s refusal to recognize prison inmates’ Christian Identity, white separatist religion. The prison system denied Christian Identity adherents the right to group worship and full immersion baptism. The court said in part:

… [P]laintiffs have met their burden ,,, to show that the Department has imposed a substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays….

At step three of RLUIPA, the burden shifts to the Department to make two showings. First, it must prove that the imposition of the substantial burden on plaintiffs’ religious exercise was “in  furtherance of a compelling governmental interest.” … Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.”… The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will remand the case to the district court to resolve the point in the first instance.”

You can learn more about this issue here.

Family Law Tip: Custody Orders and School Buses

I  post some tips regarding family to my Linkedin page (see here) from time to time, and I thought I should start sharing them here too. Below is one of my family law tips, and you can read my articles on family law here and other posts on family law here and all are cataloged here.

DC Circuit Rejects NLRB’s Test For Jurisdiction Over Adjunct Faculty At Religiously-Affiliated Colleges

This is from religionclause.blogspot.com which you can find here:

In Duquesne University of the Holy Spirit v. NLRB, (DC Cir., Jan. 28, 2020), the Court of Appeals for the DC Circuit, in a 2-1 decision, held that the National Labor Relations Board lacks jurisdiction over adjunct faculty at Duquesne University.  In doing so, the majority rejected the test developed by the National Labor Relations Board in its 2014 Pacific Lutheran decision. The NLRB took the position that it lacks jurisdiction over adjunct faculty at non-profit religiously-affiliated colleges only if both the school holds itself out to the public as a religious institution and the particular faculty group petitioning performs a specific religious role. The majority held that the role played by the particular faculty may not be considered:

Pacific Lutheran impermissibly intrudes into religious matters. The Board suggests that it can avoid constitutional problems by considering only whether a religious school “holds out” faculty members as playing a specific religious role, … but such an inquiry would still require the Board to define what counts as a “religious role” or a “religious function.” … Defining which roles qualify would be far outside the competence of Board members and judges.

Judge Pillard dissenting said in part:

The Board’s approach has several advantages…. It recognizes the significant structural and functional differences between adjuncts and full faculty at many schools, as well as the heterogeneity of schools’ religious exercise. It thereby not only respects precedent and protects religious exercise, but also affords schools leeway to delineate for themselves the scope of the academic teaching corps that embodies their religious mission. In contrast to the automatic presumption of religiosity that the court adopts today, the Board’s approach adds a measure of tailoring at the exemption’s outer edge, eliminating needless sacrifice of adjuncts’ NLRA rights but extending the exemption to them where called for by a religious role the school itself identifies.

Pittsburgh Post-Gazette reports on the decision.

You can learn more about this issue here.

HHS Says California Violated Federal Conscience Protections On Abortion Coverage

This is from religionclause.blogspot.com which you can find here:

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights today issued a Notice of Violation (full text) to the state of California finding that the state violated federal law by making elective abortion coverage mandatory in all policies offered by insurance companies regulated by the state’s Department of Managed Health Care. A Christian church and a Catholic religious order filed complaints with HHS saying that California’s Mandate Letters to health care plans resulted in the religious organizations being required to offer their employees policies that cover abortions, in violation of the conscience provisions of the federal Weldon Amendment.

The Notice of Violation explains:

… [T]he only exemption California offered (to a health plan issuer) was limited to plans covering a narrow set of “religious employers” under California law. However, the Weldon Amendment protects from discrimination all plans that decline to cover abortion, without requiring any plan issuers, sponsors, or beneficiaries to have a religious character or have a religious reason for not providing or paying for such coverage…. [E]ven a categorical exemption of “religious employers,” as defined by California law, would have only been available to approximately 37% of those employer groups who, prior to the Mandate Letters, had health care coverage that limited or excluded abortion.

The Notice of Violation concludes:

If OCR does not receive sufficient assurance that California will cease requiring all health care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end, OCR will forward this Notice of Violation and the evidence supporting OCR’s findings in this matter to the appropriate HHS funding components for further action under applicable grants and contracts regulations. Such referral may ultimately result in limitations on continued receipt of certain HHS funds in accordance with the Constitution and applicable Supreme Court case law.

HHS also issued a press release explaining its action which in part quotes the Director of HHS’s Office of Civil Rights:

We are putting California on notice that it must stop forcing people of good will to subsidize the taking of human life, not only because it’s the moral thing to do, but because it’s the law.

You can learn more about this issue here.

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